248

RITATE (WIIA SUPREME COURT REPORTER 000 » TAIWE

it should be by actual violence or any physical duress. It suffices, if the payment is caused on the one part by an illegal demand, and made on the other part reluctantly, and in consequence of that illegality, and without being able to regain possession of his property, except by submitting to the payment." To the same effect are the Amer. Steam-ship Co. v. Young, 89 Pa. St. 186; Cunningham v. Munroe, 15 Gray, 471; Carew v. Rutherford, 106 Mass. 1; Preston v. Boston, 12 Pick. 7. In Beckwith v. Frisbie, 32 Vt. 559-566, it was said: "To make the payment a voluntary one the parties should stand upon an equal footing.' If a person illegally claims a fee colore officii, thé payment is not voluntary, so as to preclude the party from recovering it back. Morgan v. Palmer, 2 Barn. & C. 729. In Steele v. Williams, 8 Welsb. Hurl. & Gord. 625, MARTIN, B. said: "If a statute prescribes certain fees for certain services, and a party assuming to act under it insists upon having more, the payment cannot be said to be voluntary." "The common principle," says Mr. Pollock, Principles of Contract, 523, "is that if a man chooses to give away his money, or to take his chances, whether he is giving it away or not, he cannot afterwards change his mind; but it is open to him to show that he supposed the facts to be otherwise, or that he really had no choice." Add. Cont. *1043; Alston v. Durant, 2 Strobh. 257.

No formal protest, made at the time, is by statute a condition to the present right of action, as in cases of action against the collector to recover back taxes illegally exacted; and the protests spoken of in the findings of the court of claims as having been made prior to 1866 by manufacturers of matches and others requiring such stamps are of no significance, except as a circumstance to show that the course of dealing prescribed by the commissioner had been deliberately adopted, had been made known to those interested, and would not be changed on further application, and that consequently the busi⚫ ness was transacted upon that footing, because it is well known and perfectly understood that it could not be transacted upon any other. A rule of that character, deliberately adopted and made known, and continuously acted upon, dispenses with the necessity of proving in each instance of conformity that the compliance was coerced. This principle was recognized and acted upon in U.S. v. Lee, 106 U. S. 196-200, S. Č. 1 SUP. CT. REP. 240, where it was held that the officers of the law, having established and acted upon a rule that payment would be received only in a particular mode, contrary to law, dispensed with the necessity of an offer to pay in any other mode, and the party thus precluded from exercising his legal right was held to be in as good condition as if he had taken the steps necessary by law to secure his right. For these reasons we are of opinion that the court of claims erred in rendering. its judgment dismissing the appellant's petition, and thus disallowing his entire claim. But we are also of opinion that he is not entitled to recover for so much of it as accrued more than six years before the bringing of his suit. There was nothing in the nature of the business, nor in the mode in which it was conducted, nor in the accounts it required, that prevented a suit from being brought, for the amount of commissions withheld, in each instance as it occurred and was ascertained. The recovery must therefore be limited to the amount accruing during the six years next preceding November 21, 1878, which, according to the findings of the court of claims, is $28,616, and for that amount judgment should have been rendered by the court in favor of the appellant.

The judgment of the court of claims is therefore reversed, and the cause remanded, with directions to render judgment in favor of the appellant in accordance with this opinion; and it is so ordered.

EDYE V. ROBERTSON.

(112 U. S. 580)1 od higirenizi dizedT

(5 Sup.Ct.)

drow EDYE and another v. ROBERTSON, Collector, etc.1

247.

[In Error to the Circuit Court of the United States for the Eastern District of New In sint od 38

York.]

CUNARD STEAM-SHIP CO. (Limited) v. ROBERTSON, Collector, etc.2

SAME v. SAME.

[In Error to the Circuit Court of the United States for the Southern District of New

York.]

(December 8, 1884.)

1. CONSTITUTIONAL LAW-REGULATION OF COMMERCE - CHINESE IMMIGRATION - ACT OF AUGUST 3, 1882.

The act of congress of August 3, 1882, "to regulate immigration," which imposes upon the owners of steam or sailing vessels who shall bring passengers from a foreign port into a port of the United States a duty of 50 cents for every such passenger not a citizen of this country, is a valid exercise of the power to regulate commerce with foreign nations.

2. SAME EFFECT OF PREVIOUS DECISIONS OF SUPREME COURT.

Though the previous cases in this court on that subject related to state statutes only, they held those statutes void on the ground that authority to enact them was vested exclusively in congress by the constitution, and necessarily decided that when congress did pass such a statute, which it has done in this case, it would be valid.9708

3. SAME-OBJECT OF TAX.N

The contribution levied on the ship-owner by this statute is designed to mitigate the evils incident to immigration from abroad by raising a fund for that purpose, and it is not, in the sense of the constitution, a tax subject to the limitations imposed by that instrument on the general taxing power of congress. pull add 4. SAME-UNIFORMITY OF TAXATION.

A tax is uniform, within the meaning of the constitutional provision on that subject, when it operates with the same effect in all places where the subject of it is found, and is not wanting in such uniformity because the thing taxed is not equally distributed in all parts of the United States.

5. SAME-TREATY EFFECT OF.

A treaty is primarily a compact between independent nations, and depends for the enforcement of its provisions on the honor and the interest of the governments which are parties to it. If these fail, its infraction becomes the subject of international reclamation and negotiation, which may lead to war to enforce them. With this judicial courts have nothing to do.

6. SAME PRIVATE RIGHTS-SUPREME LAW OF THE LAND.

But a treaty may also confer private rights on citizens or subjects of the contracting powers which are of a nature to be enforced in a court of justice, and which furnishes a rule of decision in such cases. The constitution of the United States makes the treaty, while in force, a part of the supreme law of the land in all courts where such rights are to be tried.

7. SAME EFFECT OF ACTS OF CONGRESS.

But in this respect, so far as the provisions of a treaty can become the subject of judicial cognizance in the courts of the country, they are subject to such acts as congress may pass for their enforcement, modification, or repeal. botuatiil

Geo. De Forest Lord, for Cunard Steam-ship Co. Philip J. Joachimsen and Edwards Pierrepont, for Edye and others. Sol. Gen. Phillips, for Robertson, Collector, etc. bite droit Suod god od zaGA

MILLER, J. These cases all involve the same questions of law, and have been argued before this court togetlier. The case at the head of the list presents all the facts in the form of an agreed statement signed by counsel, and it therefore brings the questions before us very fully. The other two were decided by the circuit court on demurrer to the declaration. They will be disposed of here in one opinion, which will have reference to the case as made

S. C. 18 Fed. Rep. 135.35 ga ons teel 2 S. C. 18 Fed. Rep. 147. g

1

by the record in Edye et al. v. Robertson. The suit is brought to recover from Robertson the sum of money received by him, as collector of the port of New York, from plaintiffs, on account of their landing in that port passengers from foreign ports, not citizens of the United States, at the rate of 50 cents for each of such passengers, under the act of congress of August 3, 1882, entitled "An act to regulate immigration." The petition of plaintiffs and the agreed facts, which are also made the finding of the court to which the case was submitted without a jury, are the same with regard to each of many arrivals of vessels of the plaintiffs, except as to the name of the vessel and the number and age of the passengers. The statement as to the arrival first named, which is here given, will be sufficient for them all, for the purposes of this opinion.

The following are admitted to be the facts in this action: "(1) That the plaintiffs are partners in trade in the city of New York under the firm name of Funch, Edye & Co., and carry on the business of transporting passengers and freight upon the high seas between Holland and the United States of America as consignees and agents. That on the second day of October, .1882, there arrived, consigned to the plaintiffs, the Dutch ship Leerdam, owned by certain citizens or subjects of the kingdom of Holland, and belonging to the nationality of Holland, at the port of New York. She had sailed from the foreign port of Rotterdam, in Holland, bound to New York, and carried 382 persons not citizens of the United States. That among said 382 persons 20 were severally under the age of one year and 59 were severally between the ages of one year and eight years. That upon the arrival of said steam-ship Leerdam within the collection district of New York, the master thereof gave, in pursuance to section 9 of the passenger act of 1882, and delivered to the custom-house officer, who first came on board the vessel and made demand therefor, a correct list, signed by the master, of all the passengers taken on board of said Leerdam at said Rotterdam, specifying separately the names of the cabin passengers, their age, sex, calling, and the country of which they are citizens, and also the name, age, sex, calling, and native country of each emigrant passenger or passengers other than cabin passengers, and their intended destination or location, and in all other respects complying with said ninth section, and a duplicate of the aforesaid list of passengers, verified by the oath of the master, was, with the manifest of the cargo, delivered by the master to the defendant as collector of customs of the port of New York on the entry of said vessel. That it appears from the said list of passengers and duplicate that the said 382 persons were each and every one subjects of Holland or other foreign powers in treaty of peace, amity, and commerce with the United States. That' the said passenger manifest also states the total number of passengers, and shows that 20 of them were under one year of age, and 59 between the ages of one year and eight years. That said collector, before allowing complete entry of said vessel, as collector decided, on the twelfth day of October, 1882, that the plaintiffs must pay a duty of one hundred and ninety-one dollars for said passengers, being fifty cents for each of said 382 passengers. That by the regulations of the treasury department the non-payment of said 191 dollars would have permitted the de-. fendant to refuse the complete entry of the vessel, or to refuse to give her a clearance from the port of New York to her home port, and such imposition would have created an apparent lien on said vessel for said sum of 191 dollars. On the defendants making such demand the plaintiffs paid the same and protested against the payment thereof. That a copy of the protest in regard to said Leerdam is annexed to the complaint, marked No. 1,' and is a correct copy of the protest. That on the same day the plaintiffs duly appealed to the secretary of treasury from such decision of the collector, and that the paper marked Appeal No. 2,' annexed to the complaint, is a copy of said appeal. On the eighteenth October, 1882, the secretary of the treasury sus

6

tained the action of the defendant, and this action is brought within ninety days after the rendering of such decision. That the payment set forth in the complaint herein was levied and collected by defendant, and the same was paid under and in pursuance of an act of congress entitled 'An act to regulate emigration,' approved August 3, 1882.”

On the facts as thus agreed and as found by the circuit court, a judgment was rendered in favor of defendant, which we are called upon to review. There is no complaint by plaintiffs that the defendant violated this act in any respect but one, namely, that it did not authorize him to demand anything for the 20 children under one year old, and for the 59 who were between the ages of one year and eight years. The supposed exception of this class of passengers does not arise out of any language found in this act to regulate immigration, nor any policy on which it is founded, but it is based by counsel on a provision of an act approved one day earlier than this, entitled "An act to regulate the carriage of passengers by sea." This provision limits the number of passengers which the vessel may carry by the number of cubic feet of space in which they are to be carried, and it declares that, in making this calculation, children of the ages mentioned need not be counted. In reference to the space they will occupy this principle is reasonable. But, as regards the purpose of the immigration act to raise a fund for the sick, the poor, and the helpless immigrant, children are as likely to require its aid as adults, probably more so. They are certainly within the definition of the word "passenger," when otherwise within the purview of the act. This branch of the case requires no further consideration.

The other errors assigned, however numerous or in whatever language presented, all rest on the proposition that the act of congress requiring the collector to demand and receive from the master, owner, or consignee of each vessel arriving from a foreign port, 50 cents for every passenger whom he brings into a port of the United States who is not a citizen, is without warrant in the constitution and is void. The substance of the act is found in its first section, namely:

AN ACT TO REGULATE IMMIGRATION.

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that there shall be levied, collected, and paid a duty of fifty cents for each and every passenger, not a citizen of the United States, who shall come by steam or sail vessel from a foreign port to any port within the United States. The said duty shall be paid to the collector of customs of the port to which such passenger shall come, or if there be no collector at such port, then to the collector of customs nearest thereto, by the master, owner, agent, or consignee of every such vessel, within twenty-four hours after the entry thereof into such port. The money thus collected shall be paid into the United States treasury, and shall constitute a fund to be called the immigrant fund, and shall be used, under the direction of the secretary of the treasury, to defray the expenses of regulating immigration under this act, and for the care of immigrants arriving in the United States, for the relief of such as are in distress, and for the general purposes and expenses of carrying this act into effect."

The act further authorizes the secretary to use the aid of any state organization or officer for carrying into effect the beneficent objects of this law, by distributing the fund in accordance with the purpose for which it was raised, not exceeding in any port the sum received from it, under rules and regulations to be prescribed by him. It directs that such officers shall go on board vessels arriving from abroad, and if, on examination, they shall find any convict, lunatic, idiot, or any person unable to take care of himself or herself, without becoming a public charge, they shall report to the collector,

and such person shall not be permitted to land. It is also enacted that convicts, except for political offenses, shall be returned to the nations to which they belong. And the secretary is directed to prepare rules for the protection of the immigrant who needs it, and for the return of those who are not permitted to land. This act of congress is similar, in its essential features, to many statutes enacted by states of the Union for the protection of their own citizens, and for the good of the immigrants who land at sea-ports within their borders. That the purpose of these statutes is humane, is highly bene ficial to the poor and helpless immigrant, and is essential to the protection of the people in whose midst they are deposited by the steam-ships, is beyond dispute. That the power to pass such laws should exist in some legislative body in this country is equally clear. This court has decided distinctly and frequently, and always after a full hearing from able counsel, that it does not belong to the states. That decision did not rest in any case on the ground that the state and its people were not deeply interested in the existence and enforcement of such laws, and were not capable of enforcing them if they had the power to enact them, but on the ground that the constitution, in the division of powers which it declares between the states and the general government, has conferred this power on the latter to the exclusion of the former. We are now asked to decide that it does not exist in congress, which is to hold that it does not exist at all; that the framers of the constitution have so worded that remarkable instrument that the ships of all nations, including our own, can, without restraint or regulation, deposit here, if they find it to their interest to do so, the entire European population of criminals, paupers, and diseased persons, without making any provision to preserve them from starvation, and its concomitant sufferings, even for the first few days after they have left the vessel. This court is not only asked to decide this, but is asked to overrule its decision, several times made with unanimity, that the power does reside in congress, is conferred upon that body by the express language of the constitution, and the attention of congress called to the duty which arises from that language to pass the very law which is here in question. That these statutes are regulations of commerce,—of commerce with foreign nations,-is conceded in the argument in this case, and that they constitute a regulation of that class which belongs exclusively to congress is held in all the cases in this court. It is upon these propositions that the court has decided in all these cases that the state laws are void. Let us examine those decisions for a moment.

In The Passenger Cases, so called, the report of which occupies the pages of 7 Howard from page 283 to 573, mostly with opinions of the judges, the order of the court is that "it is the opinion of the court that the statute of New York, by which the health commissioner of the city of New York is declared entitled to demand and receive from the master of every vessel from a foreign port that shall arrive in the port of that city the sum of one dollar for each steerage passenger brought in such vessel, is repugnant to the constitution and laws of the United States, and therefore void." An examination of the opinions of the judges shows that if the majority agreed upon any one reason for this order, it was because the law was a regulation of commerce, the power over which that constitution had placed exclusively in congress. The same examination will show that several judges denied this, because they held that this power belonged to the class which the states might exercise until it was assumed by congress. It is very clear that if any such act of congress had existed then as the one now before us, the decision of the court would have been nearer to unanimity.

In the case of Henderson v. Mayor of New York, 92 U. S. 259, the whole subject is reviewed, and, in the light of the division in this court in The Passenger Cases, it is considered, on principle, as if for the first time. In that 'case, after the statute of New York had been modified in such a manner as